Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This is an unlawful detainer action.  Plaintiff RAR2-7141 Santa Monica Blvd, LLC entered into a written lease agreement with Defendant Jose Alberto Ortiz Machicote for property located at 7141 Santa Monica Boulevard #616 West Hollywood, California (the “Premises”).   Tenant failed to pay rent, and accordingly, Landlord filed an unlawful detainer action.   

On January 12, 2024, the Court held a half-hour bench trial.  Tenant failed to appear.  Evidence was presented by Landlord, and at the conclusion of the trial, the Court awarded judgment against Tenant.   

This hearing is on Tenant’s motion to vacate entry of default judgment.  Tenant argues he was not properly served with the complaint and summons; Tenant did not respond to Landlord’s complaint because he attempted in good faith, through counsel to settle the case and hoped to avoid any filing and appearance fees, and he is entitled to mandatory relief due to an unspecified error by his attorney.   

LEGAL STANDARD 

“Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)   

“When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and thus vulnerable to direct or collateral attack at any time.”  (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 (trial court properly granted motion for relief from default and default judgment based on CCP §473(d) where defendants argued there was no valid service of process and they lacked minimum contacts with California).)   

A defendant may therefore move to set aside a default and default judgment based on improper service and lack of personal jurisdiction under Code Civ. Proc. §473(d).  (Id. at 1250.)  A defendant need not bring a motion to quash prior to or in conjunction with a motion for relief from default and default judgment pursuant to Code Civ. Proc. §473(d).  (Id.) 

It is always the plaintiff’s burden to establish the existence of jurisdiction.  (Id. at 1250-1251; Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-1440.)  Thus, even though defendant is the moving party on a motion to quash or a motion to set aside a void judgment under Code Civ. Proc. §473(d), the burden is on plaintiff to establish proper service.  (Dill, 24 Cal.App.4th at 1439-1440.)  A valid proof of service gives rise to a rebuttable presumption of valid service.  (Id. at 1441-1442.)  But the presumption may be overcome by contrary evidence.  (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.) 

The statutory requirements of service are construed to uphold jurisdiction, rather than defeat it.  (See Pasadena Medi-Center Associates v. Sup.Ct. (1973) 9 Cal.3d 773, 778.)  As long as the defendant receives actual notice of the lawsuit, substantial compliance with the Code provisions governing service of summons will generally be held sufficient.  (Id.).   

DISCUSSION 

Tenant argues default judgment should be set aside because he claims he was not properly served with the summons and complaint.  However, his declaration fails to aver to that fact and he has not rebutted the presumption of valid service established by the proof of service filed by Plaintiff.  To the contrary, Tenant attests “Plaintiff served me with an unlawful detainer case.”  (Machicote Decl. ¶12.)  Tenant also filed an answer to the Complaint on October 30, 2023, further disproving his claim that he did not receive actual notice of the complaint in time to defend against the action.   

Tenant next argues he did not respond to Landlord’s Complaint because he relied on “the settlement contract, which [Landlord] signed.”  This argument is baffling considering that Tenant did respond to the Complaint.  Tenant’s declaration also does not address any purported settlement negotiations or agreement with Landlord, leading to his failure to appear for trial. 

Tenant then argues that the Court should set aside default judgment because of a declaration of error by his attorney.  Tenant, however, submits no such declaration.  There is no declaration from counsel at all, much less one attesting that Tenant’s failure to appear for trial was a result of counsel’s mistake.  In fact, Tenant avers that he did not retain counsel until he became aware judgment was entered against him.  (Machicote Decl. ¶18.) 

Tenant also argues he should be relieved of the default judgment because he suffers from depression and could not open his mail.  Tenant was sent notice of the trial date.  The fact that he did not bother to open and read the notice is not excusable neglect.   

In sum, none of the grounds asserted by Tenant support vacating the judgment against him.   

CONCLUSION 

For the foregoing reasons, the Court DENIES Defendant’s motion to vacate default judgment.   

DATED:  February 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court